The Chapter 11 bankruptcy process allows companies to reject contracts that are below market value, but Fisker says there's no reason for A123 to do so until its automotive battery business is purchased by another company.

And if A123 succeeds in breaking the contract, Fisker's lawyers say the carmaker will immediately claim a "contract rejection damage claim in excess of $63 million" as well as $52 million for the cost of the battery pack recall.

Fisker suggests the move by A123 is no more than a negotiating tactic, and should be rejected by the court.

The claim will be decided tomorrow at a Bankruptcy Court hearing in Wilmington, Delaware.